SI CHI01110.510 Restrictions on the Disposal of Real Property Ownership Interest (TN 375 -- 07/2005)

This section provides information on restrictions on the disposal of property ownership interest both in situations where it is owned by one individual and where ownership is shared.

A. Policy

Shared ownership in property occurs where two or more people own the same property at the same time. There are three types of shared concurrent ownership: tenancy in common, joint tenancy, and tenancy by the entirety.

The following chart describes the types of shared ownership recognized by each state in the Chicago Region and the applicable restrictions, if any, on the transfer of the shared ownership interest.

Note that while one owner cannot sell the entire property by himself, he usually can sell or transfer his own interest in the property without the consent of the other owners. The chart identifies those situations where transfer of an interest is restricted.

B. Chart for Determining Types of Shared Ownership Interest and Restrictions

Type of Ownership

States Where Applicable

Rights of This type of Ownership

Inherent Restrictions on Transfer of Ownership Interest

Is Consent of Other Owners Necessary for Transfer of Ownership Interest?

Tenancy by Entirety

Indiana,* Ohio,* Michigan and Illinois**

  1. Owners must be husband and wife

  2. Each shares one and the same interest in the property

  3. Ownership commenced at the same time through one conveyance

  4. At the death of one, the other absorbs his/her ownership interest

  1. Ownership interest cannot be transferred without the consent of the other owner

YES

*In Indiana, in addition to consenting, the non-transferring spouse must join in the making of the transferring agreement. If the type of ownership is not specified in the real estate contract, assume that a tenancy by entirety was created. The Indiana code states that a written contract in which a husband and wife purchase real estate creates a tenancy by entirety, unless the contract expressly creates a tenancy in common, or unless it appears from the language in the contract that the contract was intended to create a tenancy in common.

*Ohio recognized tenancy by the entirety from February 9, 1972, to April 4, 1985. Therefore, tenancies by the entireties that were created between February 9, 1972, and April 4, 1985, continue to be valid. Tenancy by the entirety only exists in Ohio when the contract or deed specifically refers to it, e.g., “John and Jane Doe as tenants by the entirety.” It also applies only to real property, and must be conveyed by deed. While tenancy by entirety can still be created in Ohio, there are several unresolved questions. Cases involving this issue should be referred to ARC-MOS CRSI/SSI for resolution by the Office of General Counsel.

**Illinois has recognized tenancy by the entirety since October 1, 1990. Tenancy by the entirety is limited in Illinois to homestead property. Tenancy by the entirety can be severed only by a signed conveyance by both parties, the dissolution of the marriage, or the death of one or both of the parties. Upon judgment of dissolution or invalidity of the marriage, the estate, by operation of law, becomes a tenancy in common, unless and until a court directs otherwise.

Type of Ownership

States Where Applicable

Rights of This type of Ownership

Inherent Restrictions on Transfer of Ownership Interest

Is Consent of Other Owners Necessary for Transfer of Ownership Interest?

Tenancy in Common

All States in Region V

  1. Each owns a physical undivided part of the whole property

  2. Each has full use of the entire property

  3. Each may transfer his or her ownership interest at any time

  1. The transfer may or not impair or prejudice the rights of the remaining owners

  2. For Wisconsin see SI CHI01110.510B.

  3. For Minnesota homestead property, see SI CHI01110.510D.

No, unless otherwise stated on the deed

(EXCEPTION : In Wisconsin, where a spouse is involved, see SI CHI01110.510B.)

Joint Tenancy

All States in Region V except Ohio

For Ohio, see SI CHI01110.510C.

NOTE: A joint tenancy exists only when the contract or deed specifically refers to it or its rights, e.g., “Lewis and Clark as Joint Tenants”

  1. All share one and the same interest in the property

  2. Ownership commenced at the same time through one conveyance

  3. At the death of one, the others absorb his ownership interest

  4. EXCEPTION: MN does not require these unities for a joint tenancy

  1. IL, IN - None, each may transfer his interest at any time during his life

  2. MI - None, unless deed specifically refers to “right of survivorship”

  3. MN*

  4. WI - None, except when there is a spouse, see SI CHI01110.510B.

No, unless otherwise stated in the deed

(EXCEPTION : In Wisconsin, if a spouse is involved, see SI CHI01110.510B.)

In MI, consent is required if the deed specifically states there is a “right of survivorship”

*In Minnesota, a joint tenant generally has the right to unilaterally sever the joint tenancy, so long as one of the following is satisfied: (1) the instrument of severance is recorded in the office of the county recorder or the registrar of titles in the county where the real estate is situated; (2) the instrument of severance is executed by all of the joint tenants; (3) the severance is ordered by a court of competent jurisdiction; (4) a severance is effected pursuant to bankruptcy of a joint tenant; or (5) where the other joint tenant has detrimentally relied on its existence.

C. Wisconsin State Laws Known to Restrict the Sale of Property

In Wisconsin, a spouse has an ownership interest in the home held solely in the name of the other spouse. If one spouse, who holds title in his name only, wishes to convey a clear title (i.e., sell or transfer the home) to someone other than the spouse, the other spouse would have to join in the conveyance, either directly or by other written consent. The same is true if the married couple held the home property by joint ownership.

Note that this restriction applies only to home property. A home, for the purposes of this restriction, is any shelter in which the individual or spouse has ownership interest and which is used by the individual or spouse as his principal place of residence, not to exceed 40 acres.

In cases where this restriction is found to apply and the value of the property causes the claimant to exceed the resource limit, obtain a SSA-795 from the spouse regarding consent.

Example A: Before their separation, Mr. and Mrs. Madison lived in a home in Wisconsin, which Mrs. Madison had inherited from her parents. The house is in Mrs. Madison's name only. She is the sole titleholder.

Two years ago, Mrs. Madison left her husband. He continued to live in the house. This year he began receiving SSI. Mr. Madison does not hold title to the house and he does not have the right to sell the house. The house, therefore, is not his resource. Yet, he does have an ownership interest by virtue of the fact that Mrs. Madison is restricted from selling the property without his joint conveyance. So, although he pays no rent, he is not charged with support and maintenance for rent-free shelter because he has an ownership interest (SI 00830.600).

Mrs. Madison, now living in Chicago, applies for SSI presenting a copy of the deed, which shows she is the sole owner of her former Wisconsin home. The deed contains no written restrictions against the sale of the property. However, she also states that her husband is still living there and they have never been divorced. The sale of the property, therefore, is restricted by the need for her husband's joint conveyance or written consent to the sale. The FO must then contact Mr. Madison and obtain a signed SSA-795 statement as to whether he would cooperate in the sale. If cooperation can be obtained, Mrs. Madison can sell the property and it is a countable resource and its value must be determined.

Example B: Mr. and Mrs. Madison have switched places.

Mrs. Madison, the titleholder, is now living on her Wisconsin property. Since she has home ownership, she is in an “A” living arrangement. Because the property is now her home, it is automatically excludable. There is no need to discuss the sale of the property.

Mr. Madison is now living in Chicago. He does not hold title to the Wisconsin property. He unquestionably cannot sell it. It is not his resource. Its value does not count towards his resource limitation. There is no need to discuss the sale of the property.

Example C: In this example, Mr. and Mrs. Madison own the property jointly. Mrs. Madison lives on the property. Mr. Madison lives in Detroit. When he applies for SSI, he tells the FO that he owns Wisconsin property jointly with his separated spouse who lives on the property. The value of his interest in the property could cause him to exceed the resource limit.

Under Wisconsin State law, Mr. Madison is free to convey his interest in the property to Mrs. Madison. He is not free to otherwise dispose of his interest without her either joining in the conveyance or giving her consent. The FO must contact Mrs. Madison and obtain a signed SSA-795 statement answering two questions: 1) Would she consent to the sale of Mr. Madison's interest in the property to another party? 2) If she would not giver her consent, would she, if Mr. Madison made an offer, purchase his interest in the property for its going value? Be sure to annotate the SSA-795: THIS IS NOT AN OFFER TO SELL; A “YES” RESPONSE, THEREFORE, DOES NOT CONSTITUTE ACCEPTANCE OF AN OFFER.

A “Yes” response to either question means that his interest in the property is saleable and therefore, a countable resource. If both are answered negatively, Mr. Madison cannot sell his interest in the property. Therefore, it would not be a countable resource to him.

NOTE: There may be restrictions in addition to those listed above. If you become aware of other restrictions or encounter questionable cases, submit them to ARC-MOS CRSI/SSI.

D. Ohio Version of Joint Tenancy

Ohio does not recognize technical joint tenancy as defined by the common law of property. Rather, Ohio recognizes joint ownership with the right of survival under contact principals. That is, the terms will be spelled out in the body of the contract or deed itself. In these cases, the contract or deed will refer to joint and survivorship ownership.

THERE IS NO REASON TO SUSPECT A JOINT TENANCY TYPE OF OWNERSHIP UNLESS THE CONTRACT OR DEED SAYS THAT THE SURVIVING OWNER(S) INHERITS THE DECEASED'S OWNERSHIP INTEREST WHEN ONE OWNER (TENANT) DIES. THAT IS, THE CONTRACT OR DEED MUST GRANT THE RIGHT OF SURVIVORSHIP TO THE OTHER OWNERS.

Where the Ohio version of joint tenancy applies, use the chart below to determine whether an individual can freely dispose of his ownership interest.

Contract or Deed States:

Is consent of other owners necessary f